Jury Instructions – Self-Defense
Trial for battery, which the State theorized occurred when Heindl put Lien in a headlock from behind. Heindl himself suffered scratches and swelling about an eye, but was seriously drunk and had difficulty giving a coherent account to the police. He did not testify, thus presented no evidence of his subjective belief in necessity of force, and trial court refusal to give self-defense instruction is upheld:
¶11 A defendant has the right to a self-defense instruction if the evidence viewed in the light most favorable to the defense supports the instruction. State v. Mendoza, 80 Wis. 2d 122, 153, 258 N.W.2d 260 (1977). The issue whether the evidence provides a sufficient basis for the instruction presents a question of law, which we review de novo. State v. Giminski, 2001 WI App 211, ¶11, 247 Wis. 2d 750, 634 N.W.2d 604.
¶13 … In order for Heindl to be entitled to the instruction, there must be evidence from which it is reasonable to infer that, before Heindl put Lien in a headlock, he believed that there was an actual or imminent unlawful interference with his person and that he believed the headlock was necessary to prevent or terminate that interference.
¶17 Heindl may have subjectively believed that the headlock was necessary to prevent or terminate Lien’s actual or imminent unlawful interference with his person. However, that is not an inference that one can reasonably draw from the evidence before the jury, given the unequivocal testimony that he was behind her when he put her in the headlock and the absence of evidence about when, before the headlock, she hit and scratched him. We agree with the circuit court that, based on the evidence, the jury would have to engage in speculation to determine whether Heindl believed he needed to put Lien in a headlock to protect himself from her.
The court implies but doesn’t quite say explicitly that a defendant need not testify to his or her beliefs before self-defense becomes a viable issue. Thus, the court stresses that the trial judge rejected the instruction because “in this case, there was insufficient evidence without Heindl’s testimony” and not because “as a matter of law, a defendant has to testify about his or her beliefs,” ¶12. In other words, the result is fact-specific and whether or not the court took too narrow a view on the particular facts — trying to segment what was really a continuous course of conduct between two mutually inflamed individuals — would mean at most that the court reached the wrong result “in this case.” No need to extrapolate to other cases. It comes down to the court of appeals’ assessment that, amidst all the gouging, scratching, punching and knife-wielding, a very discrete act formed the basis for criminal liability: the headlock. And that makes it incumbent in such cases to make a notice-type argument to pin down the State as to just what its theory is. It might have been an interesting exercise to force such an announcement before Heindl’s trial rather than after, when the implications may have appeared different. But in the end, this case might simply be a very fact-specific exception to the usual gloss on an altercation of this sort, exemplified by State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982):
A review of the entire record refutes the contention that the confrontation between the defendant and Noldin constituted two separate incidents. The evidence introduced at trial establishes that the encounter was a short continuous incident that can not be factually separated. … Once the defendant began the altercation by throwing the wood into the water there was no “break in the action” and the confrontation continued until the defendant had incapacitated Noldin on the river bank. After all, every blow that is struck in an altercation such as this is not a separate incident. The jury could properly consider it as one continuous event.
If, though, the incident can be “segmented,” then not only is there a potential notice-of-charge problem, but one of juror unanimity as well, and careful attention will have to be paid to the jury instructions, to ensure that unanimity is composed on the precise factual theory of guilt advanced by the State.